Page:Federal Reporter, 1st Series, Volume 4.djvu/630

 610 FEDKRAL REPORTBB. �ing Boaglit to he pursued, such legislation musfc be followed, althougii opposed to the forma and modes of proeeeding pre- vailing in the state courts, and established by state statutes. Easton v. Hoclgcs, 7 Biss. 324; Beardsley y.Littell, 14 Blatohf. 102. �The defendant moves to set aside the summons, bqcause of the foregoing defects, before appearing generally in the suit; and the plaintiffs ask to be allowed to amend the Bummons, nunc pro tune, by having the seal and signature added. It la alleged that the statute of limitations would be a bar to a new suit. Power to amend the process is said to be given by sections 948 and 954. That power is power to amend a defect in process, and power to amend a want of form in process. But there must first be a process to be amended. There must be something to amend, and to amend by. This paper is no process. The process which can be amended, under the power conferred, is process issuing from the court. This paper never issued from the court. If it had in fact issued from the court and was signed by the clerk, but had no seal, or had a seal but was unsigned, what it had might, perhaps, be accepted as showing that it issued from the court, and the lacking particular might be supplied. In Peaslee v. Haberstro it is said : "If the summons in this case had been sigued by the clerk, it could be amended as regards the seal. As it is, there is no summons in the nature of process known to this court." In that case there was no seal and no signa- ture of the clerk, and the summons was set aside. �The motion of the defendant is granted, and the motion of the plaintiffs is denied. ����